Thoughts on oral argument in Notre Dame v. Sebelius

February 14

I just spent a while listening to the oral argument in Notre Dame v. Sebelius, in which Notre Dame is objecting to the government’s requirement that it sign a certain two-page form to be otherwise relieved from compliance with the contraceptive mandate.

Much of the coverage of the argument has focused on the quite unproductive and testy exchanges between Judge Posner and Notre Dame’s counsel. As Howard Bashman puts it:

Putting it mildly, Judge Posner was at his cantankerous best during the oral argument, at one point yelling at Kairis “You answer my question!” Judge Posner also told Notre Dame’s lawyer several times “Don’t fence with me” when Judge Posner thought that Kairis was not answering a question directly enough. And at one point, Judge Posner told Kairis “If you don’t cooperate with me, I’m not going to let you continue your argument.”

Judge Posner never did carry through with his threat to shut down Kairis’s argument, so it’s not clear whether that would have required the concurrence of another panel member. In Judge Posner’s defense, at one point even Judge Hamilton seemed a little exasperated with Kairis’s failure to directly respond to a question, reminding the advocate that the lawyers had already inflicted a great deal of reading material on the judges communicating whatever the lawyers wanted to say, and now it was the judges’ opportunity to have the lawyers address the judges’ many questions and concerns.

Several times during the oral argument, Judge Posner told Kairis “Please don’t interrupt me.” At least several of those times, however, it was Judge Posner who was interrupting Kairis, who then failed to stop talking. Instead of trying to prove the point “You don’t interrupt me; rather, I interrupt you,” maybe Judge Posner could have better communicated his message by telling the advocate, “When I start talking, you must stop talking.”

There were also some odd moments when Judge Posner started relying heavily on various facts that didn’t seem to be in the record (so far as I could tell) — like the distinction between mortal sins and venial sins under Catholic doctrine, and his observations that Notre Dame’s website contained statements that he thought were inconsistent with their claimed religious beliefs.

I was more interested, though, in a question Judge Hamilton asked about whether there were other occasions in history of religious objection to participating in an exemption regime itself. Notre Dame’s counsel couldn’t think of any.

While it’s not quite analogous, I was reminded of a passage from United States v. Friday, a Tenth Circuit opinion written by then-Judge Michael McConnell (now a religious liberty and constitutional law scholar) dealing with religious use of eagle feathers.

In Friday, the defendant was prosecuted for violating an eagle-protection law where he had not applied for a permit to take the eagle. He raised a defense under RFRA. Among many other things, the Court said:

We are skeptical that the bare requirement of obtaining a permit can be regarded as a “substantial burden” under RFRA, at least in this case. Many religious activities, from building a church to homeschooling a child to obtaining peyote for a Native American Church ceremonial, require some form of advance authorization from the state. To be sure, in theory a claimant’s beliefs might forbid him from asking the government for permission to take the eagle, perhaps because such a request would fail to treat the eagle as “a gift of the Creator.” However, Mr. Friday has not made any such claim. His appellate briefs contain one isolated statement that the requirement that he use the process—regardless of how it operates—is “offensive.” The brief cites no record support for this claim, and we can find none. Below, Mr. Friday never testified that he had any religious objection to using the permit system. His only testimony about the system was that he did not know it existed until he was told of it after the prosecution began. Moreover, the claim seems to be contradicted by the argument, made at length in his brief, that he was disadvantaged by the federal government’s failure to publicize the existence of the permit program. If the mere obtaining of a permit were offensive to his religion, the failure of the government to inform him of this option would not be an injury. Without any evidence that Mr. Friday’s religious tenets are inconsistent with using an application process, we cannot find a substantial burden under this theory.

Now this discussion may ultimately prove unhelpful to those thinking about Notre Dame and the Little Sisters case, but I thought it was relevant enough to note.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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